United States v. Pinkerton, 694 F. App'x 652

John Scott Pinkerton pled guilty to attempted online enticement of a minor under 18 U.S.C. § 2422(b) and received a 10-year sentence pursuant to a Rule 11(c)(1)(C) plea agreement.
He previously filed a § 2255 motion that was dismissed as untimely on the merits.
Pinkerton then filed a pleading titled “Constitutional Challenge to Statute of 18 U.S.C. § 2422(b),” arguing the statute is unconstitutional facially and as applied, and raising jurisdictional objections about federal territorial authority.
The district court treated the pleading as a second or successive § 2255 motion and dismissed it for lack of circuit authorization under 28 U.S.C. §§ 2244(b)(3) and 2255(h), concluding transfer would be futile.
Pinkerton also requested certification of his constitutional challenge to the Attorney General under 28 U.S.C. § 2403(a); the court denied that and later the Tenth Circuit denied a certificate of appealability (COA), dismissed the appeal, and denied IFP status.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the pleading is a second or successive § 2255 motion	The filing is a constitutional challenge to § 2422(b), not a successive § 2255	A challenge to the validity of a conviction falls under § 2255; prior § 2255 adjudication makes a subsequent challenge second/successive	Treated as second/successive and dismissed for lack of circuit authorization
Whether Pinkerton’s challenge cited a § 2255(h) basis (new evidence or new rule)	Implicitly argued merits; did not assert newly discovered innocence or a new Supreme Court rule	Government/ court note that § 2255(h)(1) and (2) bases were not alleged	No § 2255(h) basis shown; transfer for authorization would be futile
Whether territorial/subject-matter jurisdiction claims defeat conviction	Asserts federal criminal statutes only apply on federal territory and challenges subject-matter jurisdiction (cites 40 U.S.C. § 3112(b), Art. I § 8)	Jurisdictional challenge to sentence is properly brought under § 2255 and was available earlier	Claims fall within § 2255 and are subject to second/successive dismissal
Whether the court should certify the statute question to the Attorney General under § 2403(a)	Requests certification to notify the United States to defend the statute	§ 2403(a) applies when the U.S. is not a party; here the United States is a party	Certification request denied as unnecessary

Slack v. McDaniel, 529 U.S. 473 (standard for certificate of appealability)
Stanko v. Davis, 617 F.3d 1262 (10th Cir.) (a collateral challenge to a federal conviction properly brought under § 2255)
In re Rains, 659 F.3d 1274 (10th Cir.) (prior merits disposition renders later § 2255 filing second or successive)
In re Cline, 531 F.3d 1249 (10th Cir.) (transfer to circuit for authorization may be futile under certain circumstances)
Clark v. Oklahoma, 468 F.3d 711 (10th Cir.) (reminder that unsuccessful COA applicants remain responsible for filing fees)